Citation Nr: 0845027
Decision Date: 12/31/08 Archive Date: 01/07/09
DOCKET NO. 06-04 181 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to a compensable rating for status post
septorhinoplasty.
2. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for a
back disability.
3. Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Barone, Associate Counsel
INTRODUCTION
The veteran had active duty service from November 1973 to
November 1977.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2005 rating decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA). A notice of disagreement was received in September
2005, a statement of the case was issued in October 2005, and
a substantive appeal was received in January 2006.
In the context of his current increased rating for status
post septorhinoplasty claim, the veteran has advanced several
contentions regarding his nonservice-connected sinusitis and
rhinitis. These contentions suggest an implied claim of
service connection under 38 C.F.R. § 3.310 (2008). The Board
does not view this as an intertwined issue. Therefore, this
matter is referred to the RO for clarification and any
necessary action.
The issue of entitlement to service connection for a back
disability under a merits analysis is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's service connected status post
septorhinoplasty is manifested by 40 percent left nasal
obstruction and 10 percent right nasal obstruction.
2. An August 1990 RO rating decision denied entitlement to
service connection for back disability; the veteran was
notified of his appellate rights related to this denial in
September 1990, but the veteran did not file a notice of
disagreement.
3. In February 2005, the veteran requested that his claim of
entitlement to service connection for back disability be
reopened.
4. Certain evidence received since the August 1990 rating
decision is not cumulative of the evidence of record
considered at the time of the August 1990 denial, relates to
unestablished facts necessary to substantiate the claim, and
raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a compensable rating
for status post septorhinoplasty have not been met. 38
U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002);
38 C.F.R. § 4.97, Diagnostic Code 6502 (2008).
2. The August 1990 RO rating decision which denied service
connection for back disability is final. 38 U.S.C.A.
§ 7105(c) (West 2002).
3. Evidence received since the August 1990 RO rating
decision is new and material in connection with the petition
to reopen the claim of entitlement to service connection for
back disability, and the veteran's claim of entitlement to
service connection for back disability has been reopened. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Board acknowledges the Veterans Claims Assistance Act of
2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002). This legislation provides, among other things, for
notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The
intended effect of the regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits, or who attempts to reopen a previously denied
claim.
With regard to the issue of whether new and material evidence
has been submitted to reopen the claim of entitlement to
service connection for a back disability, there is no need to
undertake review of compliance with VCAA and implementing
regulations at this time. This Board decision grants the
veteran's appeal to the extent that it finds new and material
evidence sufficient to reopen the underlying claim; it is
anticipated that any deficiencies with regard to VCAA notice
or the duty to assist the veteran will be addressed and
remedied while the underlying issue is on remand to the RO.
See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38
C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board
turns its attention, then, to the VCAA requirements
associated with the claim for an increased rating currently
on appeal.
After reviewing the claims folder, the Board finds that the
claimant has been notified of the applicable laws and
regulations which set forth the necessary criteria for the
benefit currently sought. In a letter sent in September
2005, the claimant was informed of the information and
evidence necessary to warrant entitlement to the benefits
sought. Moreover, this letter advised the veteran of the
types of evidence VA would assist him in obtaining as well as
his own responsibilities with regard to identifying relevant
evidence. See Quartuccio v. Principi, 16 Vet.App. 183
(2002); Charles v. Principi, 16 Vet.App. 370 (2002). The
Board notes that this letter was sent to the appellant prior
to the most recent RO-level readjudication of this case and
the issuance of the March 2006 supplemental statement of the
case. The VCAA notice was therefore effectively timely. See
Pelegrini v. Principi, 18 Vet.App. 112 (2004).
The Board finds that all notices required by VCAA and
implementing regulations were furnished to the appellant and
that no useful purpose would be served by delaying appellate
review to send out additional VCAA notice letters.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. Additionally, this notice must include
notification that a disability rating and an effective date
for the award of benefits will be assigned if the benefits
are awarded. Id. at 488.
In the present appeal, there has been no timely notice of the
types of evidence necessary to establish particular ratings
and effective dates for any ratings that may be granted; the
March 2006 supplemental statement of the case did include
this notice in an untimely fashion. To the extent that
Dingess may apply to this claim, the Board finds no prejudice
to the appellant in proceeding with the issuance of a final
decision despite the untimely notice provided to the
appellant. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby). The veteran was provided with a letter which
expressly described how the VA determines ratings and
effective dates in the March 2006 supplemental statement of
the case. Subsequently, in September and December 2006, the
veteran's representative submitted additional argument in
this case and made no indication that further development was
sought in light of the March 2006 notice regarding Dingess.
The September 2005 VCAA letter provided timely notice of the
evidence necessary to establish entitlement to the increased
compensation the veteran seeks, and the veteran is
represented by a VA recognized national service organization
which would be expected to have actual knowledge of the
Dingess elements, including with regard to assignment of
ratings and effective dates. Since the Board finds below
that entitlement to the benefit sought is not warranted in
this case, no effective date will be assigned and any
questions related to effective date assignments are therefore
rendered moot.
For an increased-compensation claim, section § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, 22 Vet.App. 37 (2008). Further, if the Diagnostic
Code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation, e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008).
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial, and that once an error is identified as to any
of the four notice elements the burden shifts to VA to
demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores v.
Peake, 22 Vet.App. 37 (2008) ('Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrates an awareness of
what was necessary to substantiate his or her claim.')
(citing Dalton v. Nicholson, 21 Vet.App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F. 3d
at 889. Additionally, consideration also should be given to
'whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial.' Vazquez-Flores v. Peake, 22 Vet.App.
37 (2008).
With regard to the increased rating claim on appeal, the
Board believes that the record persuasively demonstrates that
the veteran has actual knowledge of the information necessary
to substantiate the veteran's claim. In various
communications as well as in information imparted to medical
care personnel, the veteran has reported the impairment from
the service-connected disability's limitation upon his
breathing in characterizing the limitation upon his daily
activities and employment. Further, the Board notes that the
veteran is represented by a national service organization,
and it is appropriate to assume that the veteran's
representative included pertinent information concerning the
elements of the claim in its guidance to the veteran.
Thus, as the veteran had actual knowledge of the requirements
for the increased compensation sought and sufficient
opportunity to submit evidence, despite the inadequate notice
provided to the appellant, the Board finds no prejudice to
the appellant in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby).
Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations. The record as it stands includes
sufficient competent evidence. All available pertinent
records, in-service, private, and VA, have been obtained.
The veteran has been afforded a VA examination to evaluate
his disability on appeal; a June 2005 VA examination report
is of record. The Board finds that the record as it stands
includes adequate competent evidence to allow the Board to
decide the case and no further action is necessary. See
generally 38 C.F.R. § 3.159(c)(4). No additional pertinent
evidence has been identified by the claimant as relevant to
this appeal. Under these circumstances, no further action is
necessary to assist the claimant with this appeal.
Analysis
I. Increased Rating
The veteran contends that the severity of his service
connected residuals of septorhinoplasty warrant the
assignment of an increased disability rating. Disability
evaluations are determined by the application of the Schedule
For Rating Disabilities, which assigns ratings based on the
average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R.
Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet.App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet.App. 55 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. Hart v. Mansfield, 21 Vet.App. 505 (2007). The
analysis in the following decision is therefore undertaken
with consideration of the possibility that different ratings
may be warranted for different time periods.
Pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502, a maximum
rating of 10 percent is assigned for traumatic nasal septum
deviation with 50 percent obstruction of the nasal passage on
both sides or complete obstruction on one side. Where no
noncompensable rating is specifically provided by the
Schedule, a zero percent rating is assigned when the criteria
for a compensable rating are not met. 38 C.F.R. § 4.31.
Service medical records reflect that in May 1977 the veteran
underwent septorhinoplasty to correct "internal and external
nasal deformity with left nasal obstruction."
An August 1990 RO rating decision granted service connection
for disability associated with the in-service
septorhinoplasty, with a noncompensable rating effective from
June 1990. In April 2005, the veteran submitted a claim for
an increased rating, describing "I am currently on
medication for my sinus problems." The veteran was afforded
a VA examination to evaluate this disability in June 2005,
and the associated examination report is of record. The
veteran described to the examiner that "'it is turning
crooked' and 'my airway is cut off.'" The veteran also
"reports seasonal allergies" for which he reported he was
"no longer taking medication." The veteran stated he was
not currently receiving any treatment associated with his
disability on appeal.
The June 2005 VA examination report shows that the veteran
had periodic symptoms associated with sinusitis and rhinitis,
with "constant" difficulty breathing through the nose.
Septal deviation was confirmed. Most significantly, the June
2005 VA examination report contains the competent clinical
determination, upon inspection of the veteran's nose, that
there was "40% left nasal obstruction" and "10% right
nasal obstruction." The Board finds that these competent
clinical findings are adequate and probative in describing
the quantitative level of the veteran's nasal obstructions.
No medical evidence of record contradicts the findings in the
June 2005 VA examination report and, thus, the Board finds
that it is probatively demonstrated that the veteran has 40
percent left nasal obstruction and 10 percent right nasal
obstruction.
Thus, the Board is presented with a record that indicates
that the disability on appeal is manifested by less than 50
percent obstruction of the nasal passage on both sides.
Thus, the criteria for a compensable rating under Diagnostic
Code 6502 have not been met. There is otherwise no other
diagnostic code that would allow for a compensable evaluation
for status post septorhinoplasty. Post-service medical
records do not otherwise reflect any compensable residuals
from his septorhinoplasty.
The Board observes that the medical evidence, including the
June 2005 VA examination report, indicates that the veteran
suffers from symptoms attributed to non-service-connected
disorders such as his diagnosed allergic rhinitis and
sinusitis. A July 2005 addendum to the VA examination report
interprets a CT scan to show "Moderate chronic lest
maxillary sinusitis." The same CT scan is interpreted to
show only "Mild nasal septal deviation without mucosal
apposition or significant spur formation." Symptomatology
from sinusitis and allergic rhinitis is not part of this
appeal, and any symptomatology associated with such
disabilities will not be considered in assessing the severity
of the veteran's status post septorhinoplasty.
The Board has carefully reviewed and considered the veteran's
statements regarding the severity of his disability on
appeal. The Board acknowledges and understands his belief
that the disability is more severe than the assigned
disability rating reflects. However, the Board must note
that while lay-statements are competent to provide evidence
regarding history and symptomatology, they are not competent
to provide evidence regarding the clinical severity of the
veteran's disabilities. See Espiritu v. Derwinski, 2
Vet.App. 492 (1992). Only a medical professional can provide
evidence of the clinical severity of a disease or disability.
The Board is unable to find that the competent evidence shows
that any increased rating is warranted under the applicable
rating criteria for the veteran's disability status post
septorhinoplasty, based upon the clinical findings of medical
professionals and the objective evidence of record.
The veteran clearly suffers from nasal septum deviation.
However, the Board is bound by regulations which set forth
the criteria for various ratings. The preponderance of the
evidence in this case is against a finding that the criteria
for an increased rating has been met under any applicable
Diagnostic Code. The veteran may always advance a claim for
an increased rating should the severity of the disability
increase in the future.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards." 38
C.F.R. § 3.321(b)(1). In this regard, the Board finds that
there has been no showing by the veteran that the disability
status post septorhinoplasty has resulted in marked
interference with employment or necessitated frequent periods
of hospitalization. Under these circumstances, the Board
finds that the veteran has not demonstrated marked
interference with employment so as to render impractical the
application of the regular rating schedule standards. In the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8
Vet.App. 218, 227 (1995).
In sum, the Board finds that the preponderance of the
evidence is against assignment of a compensable rating for
status post septorhinoplasty. In making this determination,
the Board has considered the provisions of 38 U.S.C.A.
§ 5107(b), but there is not such a state of approximate
balance of the positive evidence with the negative evidence
to otherwise warrant a higher rating in this case.
II. New and Material Evidence
The claim of entitlement to service connection for a back
disability was previously denied by an RO rating decision
dated August 1990. In this RO rating decision, the RO
informed the veteran (in pertinent part) that there was no
evidence of chronic back disability in the service medical
records, and that there was no diagnosis of a chronic back
disability following service. The veteran was also informed
of his appellate rights with respect to this denial of his
claim. However, the veteran did not file a notice of
disagreement with the decision. The August 1990 rating
decision is therefore final. 38 U.S.C.A. § 7105(c).
However, claims which are the subject of prior final
determinations may nevertheless be reopened if new and
material evidence is presented or secured. 38 U.S.C.A.
§ 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed.Cir.
1998).
The veteran petitioned to reopen his claim of entitlement to
service connection for a back disability in February 2005.
The RO reviewed the additional records submitted at that time
and found that they did not present new and material
evidence. The RO denied the petition to reopen the claim in
an August 2005 rating decision. Subsequently, after a notice
of disagreement and additional evidence was received, the RO
issued an October 2005 statement of the case which again
denied the veteran's petition to reopen the claim.
The Court has held VA is required to review for newness and
materiality only the evidence submitted by a claimant since
the last final disallowance of a claim on any basis in order
to determine whether a claim should be reopened and
readjudicated on the merits. Evans v. Brown, 9 Vet.App. 273,
283 (1996). The August 1990 RO rating decision is the last
final disallowance of the claim involving entitlement to
service connection for a back disability.
The definition of 'new and material evidence' as set forth in
38 C.F.R. § 3.156(a) was revised, effective August 29, 2001.
This new regulation provides: A claimant may reopen a finally
adjudicated claim by submitting new and material evidence.
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 66
Fed.Reg. 45630 (2001) (codified as amended at 38 C.F.R.
§ 3.156(a)). This latest definition of new and material
evidence only applies to a claim to reopen a finally decided
claim received by the VA on or after August 29, 2001. Id.
As the appellant filed the request to reopen in 2005, the
revised version of 3.156 is applicable in this appeal.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
As discussed in the reasons and bases presented in the August
1990 prior final denial of the veteran's claim of entitlement
to service connection for a back disability, at that time
there was no medically diagnosed chronic back disability.
The August 1990 denial acknowledged that the veteran suffered
a significant fall during service in September 1975 (shown in
the service medical records to be a fall from 20 to 35 feet
from the mast of a ship), and the August 1990 denial
acknowledged that "evidence of a back condition is shown on
December 1977 [the month following the conclusion of active
duty service]...." A key basis for the August 1990 denial,
however, was that none of this evidence indicated any chronic
back pathology, and that "[t]here is no evidence since 1977
that verifies a back disability."
The most significant items of evidence submitted to the
record following the August 1990 final denial are private and
VA outpatient treatment records showing treatment for
diagnosed chronic back disabilities. The Board particularly
notes a private medical record dated October 2004 which
states that "He has had back pain for some time. He did
injure his back in 1975 and has had back pain off and on
since then. X-rays have shown degenerative joint disease."
A December 2002 private medical record contains a radiology
study interpreted as showing "degenerative disk disease L1-2
and L5-S1 as well as T12-L1." A December 2004 private
medical record contains an MRI study showing "Broad based
disk herniation at L5-S1 ...."
At the time of the veteran's prior final denial, there was no
clear medical diagnosis of any chronic back disability which
may be linked to military service. The Board notes that the
veteran's service medical records clearly reveal that the
veteran suffered significant injuries from the impact of a
fall from 20 to 35 feet from the mast of a ship during
service in September 1975, and a December 1977 medical record
refers to "pain over L5 ... this represents old injury (fall
off mast)" as well x-ray evidence of an old compression
fracture of T12. The newly submitted evidence in this case
now shows diagnosed disabilities of the back, including
specifically of the L5 and T12 segments; the Board finds that
this new evidence is material to the claim.
Thus, the newly submitted evidence in this case features
medical evidence indicating the existence of a current back
disability with a potential etiological link to service. The
record previously contained no competent medical evidence of
a current chronic back disability, which was an essential
basis for the prior final denial of the claim. The Board
views the submitted medical evidence as new and material to
the veteran's claim as it relates to an unestablished fact in
a manner reasonably supportive of the veteran's claim. The
claim has therefore been reopened. After further
development, the underlying merits of the claims will be
considered.
ORDER
A compensable rating is not warranted for the veteran's
status post septorhinoplasty. To this extent, the appeal is
denied.
New and material evidence has been received to reopen the
veteran's claim of entitlement to service connection for a
back disability. To this extent, the appeal is granted,
subject to the following remand section of this decision.
REMAND
Review of the record indicates that the RO found no new and
material evidence to reopen the claim of entitlement to
service connection for a back disability. Where the RO
initially finds no new and material evidence to reopen and
the Board then finds that such new and material evidence has
in fact been received (thus reopening the claim), the case
must be remanded to the RO for a de novo review of the entire
record and a merits analysis unless there would be no
prejudice to the veteran. See generally Bernard v. Brown, 4
Vet.App. 384 (1993).
The back disability claim also involves matters of medical
diagnosis and etiology. Further development of the medical
record is therefore necessary to allow for informed appellate
review.
Accordingly, the case is REMANDED for the following actions:
1. The RO should review the record and
take the necessary actions to ensure
compliance with all VCAA notice and
assistance requirements. The veteran
should be furnished with a new adequate
VCAA notice for his reopened claim of
service connection for back disability.
Also, the veteran should be furnished with
an appropriate VCAA letter in accordance
with the guidance of the recent
Dingess/Hartman decision that VCAA notice
requirements apply to all five elements of
a service connection claim.
2. The veteran should be scheduled for an
appropriate VA examination to determine the
nature and etiology of any current back
disabilities. It is imperative that the
claims file be made available to the
examiner for review in connection with the
examination. Any medically indicated
special tests should be accomplished.
After reviewing the claims file and
examining the veteran, the examiner should
respond to the following:
a) Please identify any current chronic
back disabilities diagnosed in this
veteran.
b) For each current chronic back
disability so diagnosed, please state
whether it is at least as likely as not
(a 50% or higher degree of probability)
that the disability is a residual of
the veteran's fall from the mast of a
ship in September 1975 during the
veteran's active duty service, or was
otherwise caused by the veteran's
service. In answering this question,
please discuss any relevant service and
post-service medical records. In
particular, please discuss the
September 1975 service medical record
associated with the fall of 20 to 35
feet from the mast of a ship, and the
December 1979 medical record discussing
back pathology suggested to be possibly
related to that fall.
3. After completion of the above and any
other development which the RO may deem
necessary, the RO should review the claims
file and adjudicate the veteran's claim as
appropriate, including a merits analysis
to determine if entitlement to service
connection for a back disability is
warranted. If the claim on appeal remains
denied, the veteran and his representative
should be furnished an appropriate
supplemental statement of the case and be
afforded an opportunity to respond
thereto. Thereafter, the case should be
returned to the Board for appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs